How much Wood Should a Woodchuck Chuck

Trimming or cutting trees on or around your property can have significant legal consequencesMaybe that improved view just isn’t worth it. Many of us, especially those who are right on the “cusp” of having an ocean view, find ourselves repeatedly pondering how much better our property could be if it wasn’t for that towering pine or obstructive old oak. “Should I ask permission, or just play dumb, cut it down, and beg for forgiveness if it ends up making some waves?” Legally, there’s no reason to be stumped.As the Supreme Judicial Court has held, in cases such as Levine v. Black, 312 Mass. 242 (1942), “[t]he law is clear in Massachusetts that when a tree trunk stands wholly on one party’s land, that party is considered to be the sole owner of that tree.” Thus, and while there are some exceptions, like deeded “view easements,” only the owner of the land on which a tree “stands wholly” may trim or cut any portion of that tree. In fact, Massachusetts General Laws Chapter 242 Section 7 penalizes the willful trespass onto a neighbor’s property to cut down trees. In fact, in the absence of proof that the offending party had “good reason” to believe that the subject timber was on his or her own property, or that they were otherwise lawfully authorized to do so, they will be exposed to triple damages for engaging in such conduct. As set forth in Galvin v. Eckman (Massachusetts Appeals Court Reports, 71 Mass.App.Ct 313), in 2008, the most common measures of damages in “tree trespass” cases are (1) the value of the timber wrongfully cut, or (2) the diminution in value of the property as a result of the cutting. However, in certain circumstances, especially in cases involving improved properties, replacement or restoration costs are the most reasonable and appropriate valuation of damages. Such a valuation may often result in six-figure judgments against an offending party. Furthermore, and as the Court in the Galvin case also clearly established, property owners can be held liable for the acts of any landscapers or contractors that they employ.

But what happens in a situation where mere portions of a tree fall on your property? Or what if the tree trunk itself straddles a boundary line? The first question was also considered by the Court in the Levine case. With regards to overhang or trans-boundary growth, a property owner is well within their rights and, in fact, has a “definite right of self-help” to trim any roots or branches that invade or overhang their land.

The second question, involving a “straddling oak,” is a bit more complex and requires the consideration of more factors as, in this circumstance, actual ownership of the tree is essentially shared. In July of last year, Massachusetts Land Court Justice, Alexander H. Sands III, explored this precise question in the case of Bassin v. Fairley. Ultimately, Judge Sands came to the conclusion that, in such a circumstance, conferring a “definite right of self help” upon either owner could allow one to cut or remove vital parts of the tree and, in effect, enable them to deprive the other of their “half” of the tree. It was ultimately decided, therefore, that both property owners hold title to a portion of such a “straddling oak,” and neither party could take any action that would injure the tree as a whole.

So, if you are looking to make a few landscaping changes this Spring by cutting down a few branches or trees, you’d be wise to first clearly establish your property lines before yelling “Timber!” If the trees in your sights are located entirely or partially on your neighbor’s property, it might be time to bake some cookies or pick up a nice bottle of red.

Potential Pitfalls When Purchasing a New Home

For most of us, the purchase of a new home is one of the most significant investment decisions of our lives. Naturally, you want to make all the best decisions you can in navigating through what can often times be confusing and stressful waters. Here are some common missteps to avoid:

Condition Your Offer on an Appraisal. Your offer to purchase any home should be conditional on the receipt of an appraisal that is equal to or greater than the purchase price of the home. This way, you protect yourself against unknown defects or other issues, which can diminish the value of the property and immediately impact the return on your investment.

Condition Your Offer on Appliances and Fixtures. Appliances and other types of fixtures are often included in the purchase price of a new home. Obviously, you want to make sure that all of these appliances and/or fixtures are in good condition and functioning properly. Placing such a condition in your offer will provide the seller with an incentive to ensure that everything is in good working order.

Be Selective About the Closing Date. It is not uncommon for buyers to arbitrarily select or agree to a particular closing date. Always be cognizant, however, that the last day of the week or the last day of the month will often be extremely busy days for registries, lenders, etc., and this can lead to unwanted or immensely inconvenient delays in the purchase process. In some circumstances, you may even be prevented from moving into your new home on time, despite the moving trucks sitting in the driveway.

Personalize the Inspection Contingency. Don’t settle for standard inspection contingency language. Many times such standard language does not allow a buyer to cancel solely based on significant structural or mechanical defects that may exist. Obviously, such problems would be viewed as “deal-breakers,” and you will want to preserve your right to back out of the deal should an inspection identify any major problems. Take some time with your attorney to develop some more transaction-specific language that better fits your needs.

Factors to Consider When Selecting a Contractor for Home Improvements

Improvements to your most-prized investment are simultaneously exciting and stressful. Although there’s no way to completely alleviate the taxing inconveniences and displacement associated with living in a construction site, you can certainly take steps to ensure the work is completed as scheduled, and to protect yourself against construction defects that could lead to thousands of dollars in repair work down the road.Here are a few factors to consider when evaluating a potential contractor for your home improvement project:

Don’t go into the process blind; base your selection on known referral sources. Although this sounds self-explanatory, it is staggering how many people engage contractors to perform major work on their home, without first having a known source vouch for that contractor’s work product. Although someone may have a nice truck, office, website, or personality, this doesn’t mean that they have talent or a strong work ethic. Make sure someone you know and trust has worked with them before.

Don’t trust significantly lower quotes/bids. The name of the game for a contractor, like any business, is to cut costs and increase profit. While there are a number of ways to value engineer a given project, most cost-cutting measures will involve either labor or materials, or both. Even if a contractor seems reputable, you may be left in the dark when it comes to who he/she hires to actually perform the work. Along the same lines, unless you are constantly there, watching over their shoulder, you really have no idea what kind of building components are actually being utilized. When it comes to construction, the old adage that “you get what you pay for” doesn’t always apply. Unfortunately, there are a fair share of contractors out there who will invoice you for a premium component or material, install or use a lesser one, and pocket the difference. In short, if a price seems too good to be true, it probably is.

Make sure everything is on the up and up. Ensure that a contractor is properly licensed and is a Registered Home Improvement Contractor in Massachusetts, before engaging them (www.mass.gove/ocabr/consumer-rights-and-resources/home-improvement-contract/). Also confirm that a contractor has the proper liability and/or worker’s compensation insurance. Ask for a certificate of insurance and contact the listed insurer to confirm that they have actually heard of the contractor before and that the contractor is the holder of an active policy. Lastly, make sure to check with any regulatory or enforcement agencies to find out whether the contractor has been the subject of any consumer complaints.

Last, but not least, the fine print. Never engage a contractor without a written contract. Although a signed proposal will often suffice, such an instrument is not ideal and usually does not comprehensively memorialize the terms of the engagement. At the very least, the scope of the contractor’s work, the fee structure, firm start and completion dates (for certain projects, you may even want to include milestones), any special/custom services or expectations, and liability issues should all be explicitly outlined within a written contract between the contractor and the project owner. This written agreement should be dated, signed, and retained by each party. As with any contract, you should have your lawyer review it (or draft it, if the contractor does not have one) prior to signing.

While this is not meant to be an exhaustive “checklist,” these factors should point you in the right direction when deciding between a number of different contractors. Often times, if you put the time into the selection process for your first project, you may just develop a lifelong relationship with a trusted local craftsman who you can always rely on. There are plenty of skillful and ethical contractors out there, and the right one can make your home improvement project seem like a dream come true. Unfortunately, if you aren’t thorough during the selection process, the same project could quickly become a nightmare.